Isong Akpan Udo Ebre & Ors V. The State (2001)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

The three appellants were arraigned on a one count charge for murder at the High Court of Justice, Akwa Ibom State presided over by Eka, J. At the close of evidence and addresses by counsel on both sides, the learned trial Judge, in a considered judgment, respectively convicted the appellants for murder and sentenced them to death, while he discharged and acquitted the 4th accused.

The appellants’ appeals to the Court of Appeal, Calabar Division were unanimously dismissed while the sentences of death passed on them were confirmed.

Still dissatisfied, the appellants have appealed to this court.

The facts of this case lie within a narrow compass and would be recapitulated hereunder. Sometime on 3rd April, 1990, at the Ekoi Ikot Nyoho village, two children aged between 8 and 9 years respectively, testified herein as PW 1 and PW3 that while playing in their compound with other children, saw the 1st appellant in the company of seven other persons, pushing a wheel barrow containing a fresh headless human being towards the direction of the forest.

The headless body had its dress on and intact. PW1 and PW3 ran inside their house and alerted their mother, PW2 who in turn ran out. On getting close to the said eight men, she saw the headless body in the wheelbarrow and recognised it as that of her brother, Ndarake Matthew Ndueso, now deceased. She fainted but was able to run to the bush where she lay unconscious till the next morning. She testified that she saw eight persons, including the 4th accused pushing the wheelbarrow on that fateful day, 3/4/90.

All the appellants and the other accused persons in their evidence flatly denied the charge. It was common ground that there was no eye witness to the murder who testified at the trial, consequently the convictions of the appellants were predicated solely on the evidence of PW1, PW2, PW3, including the testimonies of the two investigating Police Officers, who respectively testified as PW4 and PW5.

The three appellants respectively filed their briefs of argument in which they identified issues for determination. The 1st appellant’s (Isong Akpan Udo Ebre), two issues run thus:

“(a) Whether the appellant was properly connected with the commission of the offence of murder as to be found guilty and sentenced to death.

(b) Whether the circumstantial evidence before the trial court was of the quality of cogency and reliability required by law to ground a conviction for an offence of murder.”

On behalf of the 2nd appellant, three issues identified by his learned counsel run as follows:

“(i) Whether it was safe to have confirmed the sentence passed on the appellants on the same identification and other evidence which discharged and acquitted the 4th accused at the trial.

(ii) Whether the defence of the appellant (alibi) was properly considered.

(iii) Whether the case against the appellants was proved beyond reasonable doubt on circumstantial evidence.”